No Free Speech Right to Encourage Suicide

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Commonwealth v. Carter, 115 N.E.3d 559 (Mass. 2019)

Michelle Carter and Conrad Roy maintained a long-distance relationship over the course of several years. They rarely had personal contact but frequently sent each other text messages and spoke on the phone. They often talked about Roy’s fragile mental health and his many suicide attempts by various means. Initially, Carter encouraged Roy to seek help. Eventually, however, Carter transitioned to helping Roy plan his suicide.

Over the course of two weeks, Carter sent Roy messages such as “[you] better not be bull shiting [sic] me and saying you’re gonna do this and then purposely get caught.” She also goaded Roy to promise he would kill himself. When Roy obtained a gas-powered water pump intending to generate carbon monoxide in his truck, he shared his plans with Carter. Carter and Roy spoke on the phone for well over an hour after Roy parked in a store parking lot and started the gas engine. When Roy got out of the truck to breathe fresh air, Carter said she “fucking told him to get back in … because I knew he would do it all over again the next day and I couldn’t have him live the way he was living anymore I couldn’t do it I wouldn’t let him.” Carter could hear Roy coughing and then heard the silence as Roy died.

“. . . We are therefore not punishing words alone, as the defendant claims, but reckless or wanton words causing death. The speech at issue is thus integral to a course of criminal conduct and thus does not raise any constitutional problem.”

Carter claimed the evidence was insufficient to show she caused Roy’s death. The appellate court stated even though “legal causation in the context of suicide is an incredibly complex inquiry, we conclude that there was sufficient evidence to support a finding of proof of such causation beyond a reasonable doubt in the instant case. Carter helped plan and encourage Roy’s death, she yelled at him to get back in the truck and complete his death, and she failed to call for help when she believed that he was dying or dead.”

Carter raised a constitutional right to push Roy to his death. She claimed her First Amendment free speech and free-expression-through-art rights excused her from responsibility for Roy’s death: Holding her responsible for Roy’s actions, when those actions were plainly motivated in part by her speech, created an unconstitutional content-based restriction on speech.

The court rejected Carter’s reliance on the First Amendment, stating, “The only verbal conduct punished as involuntary manslaughter has been the wanton or reckless pressuring of a vulnerable person to commit suicide, overpowering that person’s will to live and resulting in that person’s death. We are therefore not punishing words alone, as the defendant claims, but reckless or wanton words causing death. The speech at issue is thus integral to a course of criminal conduct and thus does not raise any constitutional problem.”

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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